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IN THE SUPREME COURT OF IOWA

NO. ****************

JOHN DOE,

Petitioner-Appellant,

v.

JANE DOE,

Respondent-Appellee.

On Appeal from the Iowa District Court for Polk County

The Honorable ******** ********, Presiding Judge

APPELLANT’S PROOF REPLY BRIEF

Mark R. Hinshaw AT00091191200 Valley West Dr. Suite 208West Des Moines, IA 50266Telephone: 515.222.1410Facsimile: 515.222.1408Email [email protected] FOR APPELLANT

TABLE OF CONTENTS

TABLE OF AUTHORITIES......................................................................................ii

STATEMENT OF ISSUES PRESENTED FOR REVIEW................................iii

STATEMENT OF THE CASE.................................................................................. 1

STATEMENT OF THE FACTS............................................................................... 2

REPLY ARGUMENT..................................................................................................15

I. STANDARD OF REVIEW AND PRESERVATION OF ERROR

II. JANE FAILED TO ADDRESS NUMEROUS FACTS AND ARGUMENTS PRESENTED BY JOHN AND MISREPRESENTED OTHERS IN SUPPORT OF HER POSITION THAT THE COURT WAS CORRECT IN GRANTING HER PRIMARY CARE OF J.J.D.

A. Jane Failed to Present any Legitimate Argument and/or Supporting Facts to Demonstrate how J.J.D.’s Long Term Best Interests are served by placing him in Jane’s Physical Care.

B. Jane Failed to Meaningfully Address the Significant Concerns Regarding Her Character

C. Jane Failed to Explain Why She Had Divorce Papers Drafted on December 01, 2016, and waited until January 01, 2017 to Have John Served

III. THE TRIAL COURT’S DIVISION OF PROPERTY WAS FAIR AND EQUITABLE UNDER THE CIRCUMSTANCES

CONCLUSION..............................................................................................................15

CERTIFICATE OF FILING.......................................................................................18

CERTIFICATE OF SERVICE...................................................................................18

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ATTORNEY’S COST CERTIFICATE....................................................................17

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS....17

ii

TABLE OF AUTHORITIES

Case Law

In re Marriage of Courtade, 560 N.W.2d 36, 37-38 (Iowa Ct. App. 1996)

In re Marriage of Dannen, 509 N.W.2d 132, 133 (Iowa App. 1993)

In re Marriage of Forbes, 570 N.W.2d 757, 760 (Iowa 1997)

In re Marriage of Giles, 338 N.W.2d 544, 546 (Iowa App. 1983)

In re Marriage of McNerney, 417 N.W.2d 205, 207 (Iowa 1987)

In re Plasencia, 541 N.W.2d 923 (Iowa Ct. App. 1995)

In re Marriage of Reis and Stowers, 2012 WL 30267491 (Iowa Ct. App. 2012)

In re Marriage of Schriner, 695 N.W.2d 493, 498 (Iowa 2005)

In re Marriage of Webb, 426 N.W.2d 402, 405 (Iowa 1988)

In re Winter’s Marriage, 223 N.W.2d 165, 167 (Iowa 1974)

Rules and Statutes

Iowa Code §598.21(1)(2015)

Iowa Code §598(21)(5)(2015)

Iowa R. App. P. 6.1101 (2015).

Iowa R. App. P. 6.1101 (3)(a) (2015)

Iowa R. App. P. 6.1101(2)(c)(2015)

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STATEMENT OF THE ISSUES PRESENTED FOR REVIEW


II. JANE FAILED TO ADDRESS NUMEROUS FACTS AND ARGUMENTS PRESENTED BY JOHN AND MISREPRESENTED OTHERS IN SUPPORT OF HER POSITION THAT THE COURT WAS CORRECT IN GRANTING HER PRIMARY CARE OF J.J.D.

A. Jane Failed to Present any Legitimate Argument and/or Supporting Facts to Demonstrate how J.J.D.’s Long Term Best Interests are served by placing him in Jane’s Physical Care.

In re Marriage of Courtade, 560 N.W.2d 36, 37-38 (Iowa Ct. App. 1996)


In re Marriage of Forbes, 570 N.W.2d 757, 760 (Iowa 1997)

C. Jane Failed to Explain Why She Had Divorce Papers Drafted on December 01, 2016, and waited until January 01, 2017 to Have John Served

In re Winter’s Marriage, 223 N.W.2d 165, 167 (Iowa 1974)


In re Marriage of Dannen, 509 N.W.2d 132, 133 (Iowa App. 1993)

In re Marriage of Giles, 338 N.W.2d 544, 546 (Iowa App. 1983)

In re Marriage of McNerney, 417 N.W.2d 205, 207 (Iowa 1987)

iii

In re Plasencia, 541 N.W.2d 923 (Iowa Ct. App. 1995)

In re Marriage of Reis and Stowers, 2012 WL 30267491 (Iowa Ct. App. 2012)

In re Marriage of Schriner, 695 N.W.2d 493, 498 (Iowa 2005)

In re Marriage of Webb, 426 N.W.2d 402, 405 (Iowa 1988)

Schantz v. Schantz, 163, N.W.2d 398, 405 (Iowa 1968)

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ROUTING STATEMENT

This case should be transferred to the Court of Appeals because no basis

exists for the Supreme Court to retain it for review. Iowa R. App. P. 6.1101

(2015). Transferring this case to the Court of Appeals is warranted because it

involves questions that can be resolved by applying existing legal principles.

Iowa R. App. P. 6.1101 (3)(a) (2015). Further, it is not an issue of first

impression for the Court. Iowa R. App. P. 6.1101(2)(c)(2015). Contrary to

Appellee’s contention, the issue of distribution of settlement proceeds has

been addressed by this Court and the court of appeals on numerous occasions.

See In re Marriage of McNerney, 417 N.W.2d 205, 206 (Iowa 1987)(adopting

the “mechanistic approach” when dealing with settlement proceeds); see also

In re Marriage of Stowers, 2012 WL 3026791 (Iowa Ct. App. 2012)(addressing

the division of funds received by a party from a sexual harassment claim in a

divorce proceeding). As such, the case should be transferred to the court of

appeals.

STATEMENT OF THE CASE

Appellant John Doe’s (hereinafter “John”) main brief accurately

describes the nature of the case, the relevant events of the prior proceedings

1

and the disposition of the case at the district court level. Since the filing of his

proof brief, the parties have made no additional filings with the district court

relevant to the issues of this appeal.

STATEMENT OF THE FACTS

John’s main brief accurately states the facts relevant to this appeal. John

does, however, take issue with many of Jane’s factual assertions.

First, as the court will note upon reviewing Jane’s brief, many of the

citations provided by Jane do not support the factual assertions contained

within her brief. Moreover, many of the facts listed by Jane are simply

inaccurate. While the legal impact of these failures will be addressed in John’s

argument, below is a list of facts that Jane has either: 1) failed to provide any

cite to the record in support of; (b) provided cites in the record which in no

way support the factual assertion at issue; or (c) has simply completely

misstated. Due to the large number of factual assertions made by Jane that

have no cite to the record/appendix or which are simply inaccurate, the list

found below is not comprehensive, but is meant to provide the court with a

general understanding of this failure:

Jane claims that she didn’t attend law school because “John was afraid of the couple taking on too much student debt.” (Appellee’s Brief , p. 4) This is just another unsuccessful attempt by Jane to

2

blame John for her failures. In reality, Jane never applied to law school, was never accepted to a law school, and was told by the University of Arkansas to not apply there because her LSAT scores were too low. (Transcript, p. 31, Lines 8-15)

Jane asserts that there is no indication in the record of any statement made by her that she and J.J.D. would move to New Jersey. (Appellee’s Brief, p. 8) Again her actions and the testimony of John don’t match this claim. John testified in detail about how Jane and him searched for housing in New Jersey with their realtor, ******** ********. (Transcript p. 336, Lines 2-25) John laid out in detail how they looked for a residence in New Jersey which was located in a good school district for J.J.D. (Transcript, p. 336, Lines 2-25). While Jane was telling her boyfriend and friends a different story behind closed doors, she was certainly leading John to believe that she was relocating.

Jane alleges that at the date of trial J.J.D. spent the last two years under her care. (Appellee’s Brief, p. 10) This is just another embellishment of the factual record. John went to work in New Jersey in August of 2014. (Transcript, p. 51-52) Trial in this matter commenced in April of 2016. (Transcript, p. 1) In that year and a half period, John regularly returned to Iowa three times a month to care for J.J.D. (Transcript, p. 310) Further, it needs to be remembered that Jane plotted to have J.J.D. in her care during that period. (Transcript, p. 111, Lines 3-19)

She further states, “she has fostered J.J.D.’s relationship with John while he has been away, going so far as to allow him to stay in the home when he visits J.J.D. (Appellee’s Brief, p. 10) Should she receive credit or praise for allowing John to stay in his own house? John co-owned the house with Jane. (Transcript, p. 33) Jane’s statement erroneously asserts that she owned or was granted exclusive possession of the house.

REPLY ARGUMENT

3


John concedes that Jane has properly preserved error on the issues

raised in her cross-appeal. He further agrees with his stated standard of

review for those issues.

II. JANE FAILED TO ADDRESS NUMEROUS FACTS AND ARGUMENTS PRESENTED BY JOHN AND MISREPRESENTED OTHERS IN SUPPORT OF HIS POSITION THAT THE COURT WAS CORRECT IN GRANTING HER PRIMARY CARE OF J.J.D.

While John’s main brief effectively addresses the arguments presented

by Jane, there are several important facts/arguments presented in John’s main

brief that Jane simply fails to address. These facts/arguments, together with

additional facts the court should be aware of are presented below.

A. Jane Failed to Present any Legitimate Argument and/or Supporting Facts to Demonstrate how J.J.D.’s Long Term Best Interests are Served by Placing Him in Jane’s Physical Care.

Jane’s entire argument and factual basis for how she can serve J.J.D.’s

Long Term Best Interests was confined to the following five lines:

“Not only does Jane provide a stable home, but she is active in her son’s life, serving as a coach in soccer and a volunteer in the classroom. She has done everything that is needed to help J.J.D. succeed, and it shows in the facts that J.J.D. is a healthy, well-adjusted, flourishing boy.” (Appellee’s Brief, p. 25)

4

While Jane should pat herself on the back for becoming active in

in her child’s life upon deciding to file for divorce, it hardly

demonstrates that she is the parent who “is most likely to bring the

child to healthy physical, mental, and social maturity.” In re Marriage of

Courtade, 560 N.W.2d 36, 37-38 (Iowa Ct. App. 1996). Further, contrary

to her assertion, she has not “done everything that is needed to help

J.J.D. succeed.” (Appellee’s Brief, p. 25) As her own witness testified,

until she had divorce papers drafted in December of 2016 Jane was “not

too active” in J.J.D.’s life. (Transcript 478, Line 18) As the famous

basketball coach John Wooden once said, “the true test of a man’s

character is what he does when no one is watching.” When the bright

lights were off in this case in 2013 Jane simply wasn’t there for J.J.D. .

Conversely, when no one was watching, John laid the bedrock to

the strong foundation upon which J.J.D. developed. John didn’t spend

the first four years of J.J.D.’s life focusing on himself. Rather, he did the

heavy lifting that resulted in J.J.D. being the well-adjusted, flourishing

boy he is today.


5

Jane claims that the District Court correctly granted her primary

physical care of J.J.D., and that such an order was in J.J.D.’s best interests.

(Appellee’s Brief, p. 22) In support of her argument, Jane attempts to

create a distorted view of her role in bringing about stability to J.J.D.’s

life. Further, she completely discounts every single negative character

flaw that she possesses. She fails to acknowledge a single deficiency in

her parenting or herself. Most remarkable about this denial is that

John’s references to these deficiencies are entirely supported by the

record created at trial by the exhibits, by Jane’s testimony, and the

testimony of the witnesses.

Domestic Violence

Jane for the first time seems to rebut John’s allegations of

domestic violence in her Reply Brief. (Reply Brief p. 23) It’s important

to note though, that there still is not an outright denial that domestic

violence occurred. Rather, Jane simply asserts that, “there is no

documented history of domestic violence, and the district court found

no compelling evidence of a pattern of domestic violence.” (Reply Brief

p. 23) Jane’s failure to outright deny the allegation shouldn’t come as a

surprise though, as Jane himself admitted under oath to the physical

nature of the parties’ conflicts. In her affidavit on temporary matters

6

she indicated, “[t]here was a time when John and I would regrettably

enter into arguments that could become mutually physical… .” (Exhibit

U, p. 31) Despite this, Jane would still like us to believe that there was

no history of domestic violence.

Jane relies on In re Marriage of Forbes, in support of her argument that

the district court analyzed the domestic abuse issue properly. (Appellee’s

Brief, p. 15-16). The Forbes court reasoned that, “[n]or does more than one

minor incident automatically establish a “history of domestic abuse”.” In re

Marriage of Forbes, 570 N.W.2d 757, 760 (Iowa 1997). Unlike the Forbes case,

John’s allegations can hardly be characterized as minor incidents. Again, the

unrebutted evidence demonstrated that in 2013, while John was holding the

parties’ minor child, Jane hit him with enough force to make him fall to the

ground. (Tr. p. 203) She then continued to punch him while he cradled the

parties’ minor child. (Tr. p. 203) Jane’s oldest daughter then took the minor

child and locked herself in the bathroom with the child. (Tr. p. 203) Jane then

took John’s keys, so he could not leave. (Tr. p. 203) In addition, John credibly

testified that Jane would routinely hit him in his torso during arguments, as

this resulted in no visible bruising. (Tr. p. 203) On other occasions she has

pinned his head to the ground or slammed his head into the wall. (Tr. p. 203)

John then testified that the assaults went unreported, as Jane would have lost

7

her national security clearance upon an arrest for domestic violence. (Tr. p.

294) Jane’s explosive temper was confirmed by her own eighteen year-old

daughter, Abigail, who testified that she didn’t want her little brother to have

to go through what she did as a child with Jane. (Tr. p. 411) Jane then failed to

provide any rebuttal evidence to John’s or Abigail’s testimony.

The credible history of domestic violence in this case, is very distinct

from the situation addressed in Forbes. Jane’s actions should not be

minimized or marginalized.

Moral Fabric

Jane again minimizes and marginalizes her negative character traits

when it comes to her moral fabric. (Appellee’s Brief, p. 23) John alleges that

she had eight affairs on him. Jane will only admit to the two that she was

physically caught having. (Transcript, p. 116, Lines 12-14)

John alleges that she has an issue with consuming alcohol, which is

evidenced by her driving her car into the ditch, drinking every night in the

barn, and meeting a boyfriend at a bar in 2013 when she was caring for J.J.D.

(Transcript , p. 162-163) Jane simply claims she has never had an issue.

(Appellee’s Brief p. 23)(stating, “this case does not involve a history of

domestic abuse and alcohol abuse”)

8

John claims that it was inappropriate for Jane to have J.J.D. sleep in bed

with her boyfriend before John was even aware that Jane had a boyfriend.

(Transcript, p. 108, Lines 19-23) Jane doesn’t think it was a big deal.

(Transcript, p. 108, Lines 19-23)

Jane admits that their arguments regrettably would get physical, but in

the same breath she was never physically violent. (Exhibit U, p. 31)

Jane denied accessing John’s e-mails impermissibly. Upon being told

that a forensic scan would be conducted on her computer she not only

admitted to accessing the e-mails, but admitted to opening confidential

attorney-client communications. (Transcript p. 103-104)

Jane tells the truth when she is cornered. She has a long history of

dishonesty, deceit, and manipulation. While she was an acceptable short term

care option for J.J.D., she certainly is not the best long term care option.

C. Jane Failed to Explain Why She Had Divorce Papers Drafted on December 01, 2016, and waited until January 01, 2017 to Have John Served.

The timing of Jane’s actions in this case raise real concerns about

her ability to foster a positive relationship between John and J.J.D.

Having divorce papers drafted on December 01, 20146 and then waiting

9

until January 01, 2017, to have John served, are indicators that Jane is

more interested in coming out on top of what she views as a

competition rather than providing a stable environment for J.J.D. in the

long run. (Appellant’s Brief, p. 11) This argument is further

strengthened by the fact that Jane was largely an absent parent for the

first four years of J.J.D.’s life. (Tr. p. 98, 188, 297, 300; Exhibit K;

February 3, 2016, Temporary Order p. 2) Despite her declarations that

she provides more stability to J.J.D., Jane failed to provide a single

explanation for the timing of her filing or for why she was not too active

J.J.D.’s life for the first four years. Common sense dictates that she held

off on filing the case for a year, so she could establish a pattern of caring

for J.J.D. It further lends credence to John’s argument that Jane

continually promised to move to New Jersey and set him up. (Tr. p. 170-

172)

The question then becomes, “should a party benefit for obtaining

temporary care of their child during the pendency of a divorce through

means of fraud or deception?” The simple answer is no.

Jane’s deception and her other poor character traits demonstrate that

she is the most detrimental option out of the two parents when it comes to

safeguarding J.J.D.’s growth and development. See In re Winter’s Marriage, 223

10

N.W.2d 165, 167 (Iowa 1974)(noting that “[d]etermining what custodial

arrangement will best serve the long-range interest of a child frequently

becomes a matter of choosing the least detrimental available alternative for

safeguarding the child’s growth and development.”) Accordingly, J.J.D.’s long

term best interests are served by placing him in the physical care of John. The

trial court’s ruling should be overturned.


A division of property pursuant to a dissolution of marriage is governed

by Iowa Code §598.21(1)(2015) and the criteria set forth in Schantz v.

Schantz, 163, N.W.2d 398, 405 (Iowa 1968). The ultimate test that should be

applied by the trial court is whether the division of property is fair and just

given all of the circumstances. In re Marriage of Giles, 338 N.W.2d 544, 546

(Iowa App. 1983). The trial court is not required to make an equal percentage

division, but rather that which is just and equitable under the circumstances.

In re Marriage of Dannen, 509 N.W.2d 132, 133 (Iowa App. 1993); In re

Marriage of Webb, 426 N.W.2d 402, 405 (Iowa 1988). Iowa Code §598.21(1)

(2015) directs a dissolution court to equitably divide between the parties all

property except inherited property or gifts received by one party. Inherited

11

property and gifts are set aside to the receiving party is divided. In re

Marriage of McNerney, 417 N.W.2d 205, 207 (Iowa 1987).

John concedes that settlement or lawsuit proceeds received by one

spouse during the course of an Iowa marriage are subject to the equitable

distribution principles set out in Iowa Code §598(21)(5)(2015). In re

McNerney, 417 N.W.2d at 207; see also In re Marriage of Schriner, 695 N.W.2d

493, 498 (Iowa 2005)(holding that workers compensation benefits received

and retained during the marriage constitute property of the marriage). Thus,

the trial court did error in concluding that the settlement proceeds were not

marital property.

Despite that error, the trial court’s assignment of the settlement monies

to John was equitable. Contrary to Jane’s argument, the issue of equitably

assigning settlement or lawsuit proceeds received by one party during the

course of an Iowa marriage has been addressed by this court on multiple

occasions. McNerney, 417 N.W.2d at 208; see also In re Plasencia, 541 N.W.2d

923 (Iowa Ct. App. 1995)(holding that it is equitable to award the injured

party the settlement proceeds); see also In re Marriage of Reis and Stowers,

2012 WL 30267491 (Iowa Ct. App. 2012). These cases generally hold that it is

equitable to assign settlement proceeds received and retained in a marriage to

the injured party.

12

In applying the statutory factors, the McNerney court noted that the

husband was injured in an automobile accident and received $45,000.00 as a

settlement. McNerney, 417 N.W.2d at 206. The settlement did not designate

what part of the proceeds were for lost wages, pain and suffering, medical

expenses or loss of consortium. Id. However, the wife was a party to the civil

cause of action. Id. The court found under those facts, that it was equitable to

award the husband approximately seventy-six of the settlement proceeds. Id.

The court reasoned that the wife was entitled to some of the settlement

proceeds, as some of the award was intended for loss of consortium and

damage to the vehicle. Id.

The court of appeals had the opportunity to revisit McNerney in In re

Plasencia, 541 N.W.2d 923 (Iowa Ct. App. 1995). In Plasencia the father had

an outstanding personal injury claim at the time of the divorce trial. Id. at 926.

The court heeded the advice of the McNerney court and found that settlement

proceeds to not automatically belong to either party. Id. However, they found

it equitable to assign all of the proceeds to the husband, as he was the one who

suffered an injury. Id.

In In re Marriage of Reis and Stowers, the court of appeals was given the

opportunity to analyze the division of settlement proceeds received by the

wife for a sexual harassment claim. Id. at 1. At the time of the parties’ trial in

13

Reis, they had $1,314,660.00 in a Vanguard account. Id. at 4. Approximately

$918,513.00 of the account balance was attributable to the settlement. Id. The

court of appeals then found it equitable to award the wife with $861,633.50

from the account, as she was the injured party. Id. at 5.

The lesson from McNerney and these court of appeals decisions is that

despite the fact that settlement proceeds received and retained during the

marriage are marital property, equity calls for the injured party to receive the

lion’s share of the settlement monies that may exist on the date of trial. Id.

What is received by the non-injured spouse is generally limited to the

settlement proceeds earmarked for a loss of consortium or for property

damage. Id.

In this case, John’s settlement from his previous employer was for

specific incidents that occurred at his workplace. The settlement proceeds

were not related to property damage or a loss of consortium claim. Further,

Jane has not and cannot argue that the proceeds were related to her loss of

consortium. The incidents leading to the settlement occurred while she was

dating her present boyfriend. The only party damaged was John. Under these

circumstances, the trial court’s assignment of the settlement proceeds to John

was equitable and just.

CONCLUSION

14

As more fully set forth above and in John’s main brief, the evidence at

trial establishes that J.J.D.’s long term best interests are served by being placed

in the primary physical care of John. Jane’s entire argument in support of

retaining physical care of J.J.D., is that she had J.J.D. in her care for the year and

a half before trial. As stated, Jane accomplished this through deception. This

is not an appropriate basis for placing J.J.D. in her care.

Jane’s argument that she is entitled to a portion of John’s settlement

with his ex-employer is equally empty. When the actions leading to the

settlement occurred Jane already had divorce papers drafted and a new

boyfriend in tow. None of the monies received were earmarked to replace

property of Jane’s. Further, none of the monies related to a loss of consortium

claim.

As such, John respectfully requests that the court find the district court

erred in placing J.J.D. in the physical care of Jane, and properly awarded John

all of his settlement monies.

WHEREFORE, Appellant, prays that the District Court’s decision in his

favor on the property settlement be affirmed and that the decision to grant

Jane physical care of J.J.D. be overturned.

15

Respectfully submitted,

/s/ Mark HinshawMark R. Hinshaw AT00091191200 Valley West Dr. Suite 208West Des Moines, IA 50266Telephone: 515.222.1410Facsimile: 515.222.1408Email [email protected] for Appellant

16

ATTORNEYS’ COST CERTIFICATE

The true and actual amount paid for printing the foregoing Brief was $0.00.

/s/ Mark Hinshaw

Mark R. Hinshaw AT0009119

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS

1. This brief complies with the type-volume limitation of Iowa R. App. P. 6.903(1)(g)(1), because this brief contains 5,239 words, excluding the parts of the brief exempted by Iowa R. App. P. 6.903(1)(g)(1).

2. This brief complies with the typeface requirements of Iowa R. App. P. 6.903(1)(e) and the type-style requirements of Iowa R. App. P. 6.903(1)(f) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in Cambria 14 point font.

/s/ Mark Hinshaw 8/29/16

Mark R. Hinshaw AT0009119 Date

17

CERTIFICATE OF FILING

The undersigned hereby certifies that on the day of of 20 , one (1) copy of Appellant’s proof brief was filed via EDMS with the Clerk of the Iowa Supreme Court.

/s/ Mark Hinshaw


PROOF OF SERVICE

I certify that on , 20 , I e-mailed a copy of this document to the attorneys of record who are listed below.

Attorney

Email **********

ATTORNEY FOR APPELLEE

/s/ Mark Hinshaw


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